**Exhibit 10.82**

 

**ASSET PURCHASE AGREEMENT**

 

**AMONG**

 

**PROCARE PHARMACY, INC.**

 

**AND**

 

**PROCARE PHARMACY DIRECT, INC.**

 

**AS BUYERS**

 

**AND**

 

**CURATIVE HEALTH SERVICES OF NEW YORK, INC.,**

 

**APEX THERAPEUTIC CARE, INC.,**

 

**AND**

 

**MEDCARE, INC.**

 

**AS SELLERS**

 

**AND**

 

**CURATIVE HEALTH SERVICES, INC.**

 

**DECEMBER 1, 2005**

 

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**TABLE OF CONTENTS**

 
| Article 1  DEFINITIONS AND INTERPRETATION                       |   | 1                                  |
|-----------------------------------------------------------------|--------|------------------------------------|
| 1.1                                                             |   | Certain  Definitions               |   | 1 |
| 1.2                                                             |   | Other  Defined Terms               |   | 4 |
|                                                            |   |                               |   |   |
| Article 2  SALE AND TRANSFER OF ASSETS                          |   | 4                                  |
| 2.1                                                             |   | Sale and  Purchase of Assets       |   | 4 |
| 2.2                                                             |   | Excluded Assets                    |   | 5 |
| 2.3                                                             |   | Assumed  Liabilities               |   | 6 |
| 2.4                                                             |   | Excluded  Liabilities              |   | 7 |
| 2.5                                                             |   | Instrument  of Transfer            |   | 7 |
| 2.6                                                             |   | Completion  of Transfers           |   | 7 |
|                                                            |   |                               |   |   |
| Article 3  CLOSING                                              |   | 8                                  |
|                                                            |   |                               |   |   |
| Article 4  PURCHASE PRICE                                       |   | 8                                  |
| 4.1                                                             |   | Payment of  Purchase Price         |   | 8 |
| 4.2                                                             |   | Purchase  Price Allocation         |   | 8 |
|                                                            |   |                               |   |   |
| Article 5  REPRESENTATIONS AND WARRANTIES OF SELLERS            |   | 8                                  |
| 5.1                                                             |   | Organization  and Related Matters  |   | 8 |
| 5.2                                                             |   | Authorization                      |   | 9 |
| 5.3                                                             |   | No Conflicts                       |   | 9 |
| 5.4                                                             |   | No Brokers  or Finders             |   | 9 |
| 5.5                                                             |   | Title to  Purchased Assets         |   | 9 |
| 5.6                                                             |   | Payment to  Creditors              |   | 9 |
| 5.7                                                             |   | Third Party  Providers and Payors  |   | 9 |
|                                                            |   |                               |   |   |
| Article 6  ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SELLERS |   | 9                                  |
| 6.1                                                             |   | Legal  Proceedings                 |   | 9 |
| 6.2                                                             |   | Compliance  with Laws              |   | 9 |
| 6.3                                                             |   | Financial  Information             |   | 10 |
| 6.4                                                             |   | Tax and  Other Returns and Reports |   | 10 |
| 6.5                                                             |   | Assumed  Contracts and Leases      |   | 10 |
| 6.6                                                             |   | Licenses and  Permits              |   | 10 |
| 6.7                                                             |   | Insurance                          |   | 11 |
| 6.8                                                             |   | Labor  Matters                     |   | 11 |
| 6.9                                                             |   | Employee  Benefits                 |   | 11 |
| 6.10                                                            |   | Government  Payment Programs       |   | 12 |
| 6.11                                                            |   | Absence of  Certain Changes        |   | 12 |
| 6.12                                                            |   | Transactions  With Affiliates      |   | 12 |
| 6.13                                                            |   | Litigation                         |   | 12 |
| 6.14                                                            |   | Undisclosed  Liabilities           |   | 13 |
| 6.15                                                            |   | Environmental                      |   | 13 |
|                                                            |   |                               |   |   |
| Article 7  REPRESENTATIONS AND WARRANTIES OF BUYERS             |   | 13                                 |
| 7.1                                                             |   | Organization  and Related Matters  |   | 13 |

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| 7.2                                                      |   | Authorization                                                |   | 13     |
|----------------------------------------------------------|--------|--------------------------------------------------------------|--------|--------|
| 7.3                                                      |   | No Conflicts                                                 |   | 13     |
| 7.4                                                      |   | Legal  Proceedings                                           |   | 13     |
| 7.5                                                      |   | Ability to  Perform; Solvency                                |   | 14     |
| 7.6                                                      |   | No Brokers  or Finders                                       |   | 14     |
|                                                     |   |                                                         |   |   |
| Article 8 BUYERS’  CONDITIONS PRECEDENT TO CLOSING  |   | 14                                                           |
| 8.1                                                      |   | Representations  and Warranties to be True and Correct       |   | 14     |
| 8.2                                                      |   | Supporting  Documents                                        |   | 14     |
| 8.3                                                      |   | Undertakings  and Agreements                                 |   | 15     |
| 8.4                                                      |   | Pay-off  Letters                                             |   | 15     |
| 8.5                                                      |   | Schedules                                                    |   | 15     |
|                                                     |   |                                                         |   |   |
| Article 9 SELLERS’  CONDITIONS PRECEDENT TO CLOSING |   | 15                                                           |
| 9.1                                                      |   | Representations  and Warranties to be True and Correct       |   | 15     |
| 9.2                                                      |   | Supporting  Documents                                        |   | 15     |
| 9.3                                                      |   | Undertakings  and Agreements                                 |   | 15     |
| 9.4                                                      |   | Pay-off  Letters                                             |   | 15     |
| 9.5                                                      |   | Purchase  Price                                              |   | 15     |
|                                                     |   |                                                         |   |   |
| Article 10 ADDITIONAL  COVENANTS AND AGREEMENTS          |   | 16                                                           |
| 10.1                                                     |   | Employment  Matters                                          |   | 16     |
| 10.2                                                     |   | Access to  Information; Preservation of Records; Cooperation |   | 16     |
| 10.3                                                     |   | Confidentiality                                              |   | 17     |
| 10.4                                                     |   | No Intent to  Induce Referrals                               |   | 17     |
| 10.5                                                     |   | Patient  Notification; Publicity                             |   | 18     |
| 10.6                                                     |   | DEA  Notification                                            |   | 18     |
| 10.7                                                     |   | Tax Matters;  Prorations                                     |   | 18     |
| 10.8                                                     |   | Patient File  Delivery                                       |   | 18     |
| 10.9                                                     |   | Use of  Computers                                            |   | 18     |
| 10.10                                                    |   | Phone System  and Phone Numbers                              |   | 19     |
| 10.11                                                    |   | Ordinary  Course                                             |   | 19     |
|                                                     |   |                                                         |   |   |
| Article 11 RESTRICTIVE  COVENANTS                        |   | 19                                                           |
| 11.1                                                     |   | Restrictions  on Sellers’ Competitive Activities        |   | 19     |
| 11.2                                                     |   | Successors                                                   |   | 20     |
| 11.3                                                     |   | Special  Remedies and Enforcement                            |   | 20     |
|                                                     |   |                                                         |   |   |
| Article 12 SURVIVAL;  INDEMNIFICATION                    |   | 20                                                           |
| 12.1                                                     |   | Survival                                                     |   | 20     |
| 12.2                                                     |   | Obligations  of Sellers and Parent                           |   | 21     |
| 12.3                                                     |   | Obligations  of Buyers                                       |   | 21     |
| 12.4                                                     |   | Procedure                                                    |   | 22     |
| 12.5                                                     |   | Survival                                                     |   | 22     |
| 12.6                                                     |   | Threshold                                                    |   | 23     |
|                                                     |   |                                                         |   |   |
| Article 13 TERMINATION                                   |   | 23                                                           |
| 13.1                                                     |   | Termination  of Agreement                                    |   | 23     |

 

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| 13.2                      |   | Effect of Termination                     |   | 23     |
|---------------------------|--------|-------------------------------------------|--------|--------|
|                      |   |                                      |   |   |
| Article  14 ARBITRATION   |   | 24                                        |
|                      |   |                                      |   |   |
| Article  15 MISCELLANEOUS |   | 24                                        |
| 15.1                      |   | Amendments; Waivers                       |   | 24     |
| 15.2                      |   | Entire Agreement                          |   | 25     |
| 15.3                      |   | Applicable Law                            |   | 25     |
| 15.4                      |   | Headings                                  |   | 25     |
| 15.5                      |   | Counterparts                              |   | 25     |
| 15.6                      |   | Parties in Interest                       |   | 25     |
| 15.7                      |   | Notices                                   |   | 25     |
| 15.8                      |   | Expenses                                  |   | 26     |
| 15.9                      |   | Assignments                               |   | 26     |
| 15.10                     |   | Remedies; Waiver                          |   | 26     |
| 15.11                     |   | Further Assurances                        |   | 27     |
| 15.12                     |   | Representation by Counsel; Interpretation |   | 27     |
| 15.13                     |   | Severability                              |   | 27     |

 

The following schedules to the Procare Pharmacy, Inc. Asset PurchaseAgreement have been omitted. Curative Health Services, Inc. will furnish anysuch schedules to the Commission as supplemental information upon request:

 

Schedules

 
| Schedule 1.1(e)  |   | Sellers’ Locations                                    |
|------------------|--------|------------------------------------------------------------|
| Schedule 2.1(b)  |   | Licenses and Permits                                       |
| Schedule 2.1(c)  |   | Assumed Contracts and Leases                               |
| Schedule 2.1(d)  |   | Phone and Fax Numbers                                      |
| Schedule 2.2(p)  |   | Additional Excluded Assets                                 |
| Schedule 4.2     |   | Purchase Price Allocation                                  |
| Schedule 5.5     |   | Encumbrances                                               |
| Schedule 5.7     |   | Third Party Providers and Payors                           |
| Schedule 6.3     |   | Business Financials                                        |
| Schedule 6.5     |   | Required Consents                                          |
| Schedule 6.8     |   | Labor Matters                                              |
| Schedule 6.10    |   | Government Payment Programs                                |
| Schedule 6.11    |   | Absence of Certain Changes                                 |
| Schedule 6.12    |   | Transactions with Affiliates                               |
| Schedule 6.13    |   | Litigation                                                 |
| Schedule 6.14    |   | Undisclosed Liabilities                                    |
| Schedule 10.1(a) |   | Seller’s Employees to Whom Buyer May Offer Employment |

 

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**ASSET PURCHASE AGREEMENT**

 

This**ASSET PURCHASE AGREEMENT**(this “**Agreement**”) is entered intoas of the 1st day of December, 2005, by and among **CURATIVE HEALTH SERVICES OF NEW YORK, INC.**, a New York corporation(“**Curative-NY**”), **APEX THERAPEUTIC CARE, INC.**, a Californiacorporation (“**Apex**”), **MEDCARE, INC.**, a Delaware corporation whichdoes business as Curative Pharmacy Services, Inc. (“**MedCare**”), (Curative-NY, Apex, and MedCare are collectivelyreferred to as “**Sellers**” and eachindividually is referred to as a “**Seller**”),**CURATIVE HEALTH SERVICES, INC.,** aMinnesota corporation and the sole shareholder of each Seller (“**Parent**”), and **PROCARE PHARMACY, INC.,** a Rhode Island corporation (“**PC Pharmacy**”), and **PROCARE PHARMACY DIRECT, INC.**, an Ohiocorporation (“**PC Pharmacy Direct**”)(PC Pharmacy and PC Pharmacy Direct are collectively referred to as “**Buyers**” and each individually is referredto as a “**Buyer**”).

 

**WHEREAS**, Buyersdesire to purchase from Sellers and Sellers desire to sell to Buyers certain ofthe assets, properties and rights of Sellers relating to the Business on theterms and conditions hereinafter set forth.

 

**NOW, THEREFORE**, inconsideration of the above and the mutual representations, warranties, covenantsand agreements set forth herein, the parties hereby agree as follows:

 

# **ARTICLE 1DEFINITIONS AND INTERPRETATION**

 

1.1                                 CertainDefinitions. In this Agreement, the following terms have the meaningsspecified or referred to in this Section 1.1, which shall be equally applicableto both the singular and plural forms.

 

### (a)                                  “**Accounts Receivable**” means all accounts,notes, interest and other receivables of Sellers, and all claims, rights,interests and proceeds related thereto, including all accounts and other receivables,in any case arising from the rendering of services to patients of the Business,billed and unbilled, recorded and unrecorded, for services provided by anySeller whether payable by private pay patients, private insurance, third partypayors, Medicare, Medicaid, or by any other source.

###  

### (b)                                 “**Action**” means any action, complaint,petition, investigation, suit or other proceeding, whether civil or criminal,in law or in equity, or before any arbitrator or Governmental Entity.

###  

### (c)                                  “**Affiliate**” means a Person that directly, orindirectly through one or more intermediaries, controls, or is controlled by,or is under common control with, a specified Person. For purposes of thisdefinition, “**control**” means thepossession, directly or indirectly, of the power to elect at least 50% of thegoverning board of such Person or to direct to cause the direction of themanagement and policies of the Person, whether through ownership of votingsecurities, partnership or limited liability interests, nonprofit membership,contract or otherwise.

###  

### (d)                                 “**Approval**” means any approval,authorization, assignment or consent, or any waiver of any of the foregoing,required to be obtained from, or any notice, statement or 

 

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### other communication required to be filed withor delivered to any Person, the receipt of which is necessary to the continuedoperation of the Business as it has been operated prior to the Closing Date.

###  

### (e)                                  “**Business**” means, with respect to aspecified Seller or the Sellers collectively, the business of providingspecialty injectable and oral medications, including, without limitation, thoserelating to oncology, RA/Derm, Hepatitis C, transplants and respiratoryillnesses (including Synagis) from the specific locations listed on Schedule1.1(e) to patients and providers as conducted by Sellers immediately priorto the Closing Date in Sellers’ current service areas in and around Albany, NewYork, Birmingham, Alabama, Lake Charles, Louisiana; Hurricane, West Virginiaand Columbus Mississippi; provided, however, that nothing herein shall beconstrued to include in the term “Business” any home infusion or other businessconducted by****any Seller or anyAffiliate of any Seller, including in Birmingham, Alabama.

###  

### (f)                                    “**Code**” means the Internal Revenue Code of1986, as amended.

###  

### (g)                                 “**Consent**” means a duly executed, writtenconsent to the assignment to Buyer of an Assumed Contract or Lease which, underthe terms of such Assumed Contract or Lease, is required to be obtained from aparty or parties other than Buyer or any Seller in connection with suchassignment.

###  

### (h)                                 “**Encumbrance**” means any claim, charge, easement, encumbrance,lease, covenant, security interest, lien, option, pledge, rights of others, orrestriction (whether on sale, transfer, disposition or otherwise), whetherimposed by agreement, understanding, law, equity or otherwise.

###  

### (i)                                     “**ERISA**” means the U.S. Employee Retirement Income SecurityAct of 1974, as amended, and the related regulations and publishedinterpretations.

###  

### (j)                                     “**Government PaymentProgram**” means Medicare, TRICARE, Medicaid, and all othergovernment-sponsored healthcare reimbursement and payment programs.

###  

### (k)                                  “**Governmental Entity**”means any government or any agency, bureau, board, commission, court,department, official, political subdivision, tribunal or other instrumentalityof any government, whether federal, state or local, domestic or foreign.

###  

### (l)                                     “**Indemnified Party**” means the BuyerIndemnified Party or Seller Indemnified Party who is entitled to indemnityhereunder.

###  

### (m)                               “**Indemnifying Party**”means the party obligated to provide indemnification hereunder.

###  

### (n)                                 “**Knowledge of Buyer**”means the actual knowledge of the General Managers for the branches, based upondue inquiry. No constructive or imputed knowledge shall be attributed by virtueof any position held, relationship to any other Person, or for any otherreason, except to the extent due inquiry was not conducted.

 

2

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### (o)                                 “**Knowledge of Sellers**” means the actualknowledge of Eric Krause and Drew Walk, based upon due inquiry. No constructiveor imputed knowledge shall be attributed by virtue of any position held,relationship to any other Person, or for any other reason, except to the extentdue inquiry was not conducted.

###  

### (p)                                 “**Law**” means any constitutional provision,statute or other law, rule, or regulation of any Governmental Entity and anyOrder.

###  

### (q)                                 “**Leased****Real Property**” means the premises atthe MedCare Columbus, Mississippi branch.

###  

### (r)                                    “**Loss**” means any cost, damage, disbursement,expense, liability, judgment, claim, demand, loss, deficiency, diminution invalue, obligation, penalty, fine, assessment or settlement of any kind ornature, whether foreseeable or unforeseeable, including, but not limited to,interest or other carrying costs, penalties, legal, accounting and otherprofessional fees and expenses incurred in the investigation, collection,prosecution and defense of claims, actual or threatened, inquiries, hearings orother reasonable legal or administrative proceedings, and amounts paid insettlement, that may be imposed on or otherwise incurred or suffered by thespecified Person; provided, however, that “**Loss**”shall not include any amount that is received by such specified Person under avalid and collectible insurance policy.

###  

### (s)                                  “**Order**” means any decree, injunction,judgment, order, ruling, assessment or writ by a Governmental Entity.

###  

### (t)                                    “**Ordinary Course**”means the ordinary and usual course of the conduct of the Business by Sellersconsistent with past custom and practice of Sellers.

###  

### (u)                                 “**Person**” means an association, acorporation, an individual, a partnership, a limited liability company, a trustor any other entity or organization, including a Governmental Entity.

###  

### (v)                                 “**Tax Return**” means a report, return or otherinformation required to be supplied to a Governmental Entity with respect toTaxes including, where permitted or required, combined or consolidated returnsfor any group of entities.

###  

### (w)                               “**Tax**” means all taxes, charges, fees,levies, or other like assessments, including without limitation income, salesand use, excise, franchise, real and personal property, transfer, grossreceipt, capital stock, production, business and occupation, disability,employment, payroll, severance, ad valorem, value added, premium, license orwithholding tax or charge imposed by any Governmental Entity, and any interest,fines, penalties (civil or criminal), assessments, or additions to taxresulting from or related thereto or to the non-payment thereof, and any Lossin connection with the determination, settlement or litigation of any taxliability.

###  

### (x)                                   “**Territory**” means a one hundred (100) mileradius of each branch location of a Seller reflected on Schedule 1.1(e).

###  

### (y)                                 “**Trade Names**” means all trade names, logos,designs, symbols, emblems, insignias and slogans, whether or not registered orcapable of registration, which are used by any Seller or any Affiliates of anySeller, including, without limitation, the following: 

 

3

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### Critical Care Systems, Inc., Curative HealthServices, Inc., Curative Critical Care Systems, Curative Health Services Co.,Curative Pharmacy Services, Wound Care Center, and Wound Management Program, orany derivation or acronym thereof.

###  

1.2                                 OtherDefined Terms. The following terms have the meanings defined for such termsin the locations set forth below:

 
| **Term**                     | ** ** | **Location**           |
|------------------------------|------------|------------------------|
|                         |       |                   |
| Agreement                    |       | Introductory Paragraph |
| Anti-kickback Statute        |       | Section 10.4           |
| Apex                         |       | Introductory Paragraph |
| Assumed Contracts and Leases |       | Section 2.1(c)         |
| Assumed Liabilities          |       | Section 2.3            |
| Benefit Plan                 |       | Section 6.9            |
| Bill of Sale                 |       | Section 2.5            |
| Business Financials          |       | Section 6.3            |
| Buyer                        |       | Introductory Paragraph |
| Buyer Indemnified Party      |       | Section 12.2           |
| Closing                      |       | Article 3              |
| Closing Date                 |       | Article 3              |
| Confidential Information     |       | Section 10.3           |
| Curative-NY                  |       | Introductory Paragraph |
| DEA                          |       | Section 10.6           |
| Dispute                      |       | Article 14             |
| Effective Time               |       | Article 3              |
| Excluded Assets              |       | Section 2.2            |
| Inventory                    |       | Section 2.2(b)         |
| Licenses and Permits         |       | Section 2.1(b)         |
| MedCare                      |       | Introductory Paragraph |
| Notice                       |       | Section 12.4(a)        |
| Patient Files                |       | Section 2.1(e)         |
| Personal Property            |       | Section 2.1(a)         |
| Preferred Provider Agreement |       | Section 11.1(b)        |
| Purchase Price               |       | Section 4.1            |
| Purchased Assets             |       | Section 2.1            |
| Seller Indemnified Party     |       | Section 12.3           |
| Seller or Sellers            |       | Introductory Paragraph |
| Third Party Claim            |       | Section 12.4(a)        |

 

# **ARTICLE 2SALE AND TRANSFER OF ASSETS**

#  

2.1                                 Saleand Purchase of Assets. Upon the terms and subject to the conditions setforth in this Agreement, at the Closing on the Closing Date, but effective asof the Effective Time, the applicable Seller shall sell, convey, assign,transfer and deliver to the applicable Buyer, and the applicable Buyer shallpurchase, receive and accept from the applicable Seller, as set forth on 

 

4

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Schedule 1.1(e),free and clear of any Encumbrances, such Seller’s right, title and interest inand to those assets of such Seller, real, personal or mixed, tangible andintangible, used in or for the benefit of the Business, whether tangible,intangible, real, personal or mixed, described below (but excluding theExcluded Assets) (the “**Purchased Assets**”):

 

### (a)                                  thetangible personal property owned by MedCare with respect to the operation ofMedCare’s Business at the Leased Real Property, including all equipment,furniture, fixtures, machinery, office furnishings, freezers, coolers, computerhardware, and leasehold improvements located at the Leased Real Property(collectively, the “**Personal Property**”);

###  

### (b)                                 allof MedCare’s rights, to the extent assignable or transferable in the context ofthe transaction contemplated hereby, to the pharmacy licenses, permits,approvals, franchises, accreditations and registrations and other governmentallicenses, permits or approvals issued to MedCare with respect to the operationof MedCare’s Business at the Leased Real Property and listed at Schedule 2.1(b)(collectively, the “**Licenses and Permits**”);

###  

### (c)                                  allof MedCare’s interest in and to those commitments, contracts, leases andagreements with respect to the operation of MedCare’s Business listed at Schedule2.1(c) including the lease for the Leased Real Property (collectively, the “**Assumed Contracts and Leases**”);

###  

### (d)                                 tothe extent transferable, all telephone and facsimile numbers and lines of theBusiness, including, without limitation, all toll-free numbers and lines, localnumbers and lines and doctor lines, all of which are set forth onSchedule 2.1(d);

###  

### (e)                                  allpatient files, medical documentation, insurance verification, patient records,prescription records and related documentation of Sellers’ Businesses forpatients receiving services as of the Closing Date and going back no less thanseven (7) years (or such shorter period if Sellers have not operated for seven(7) years), including all hard copies and electronic data related thereto inany form or format maintained by Sellers (the “**Patient Files**”), provided however, that Sellers may retaincopies of any such materials that are necessary for purposes of resolvingunbilled or outstanding Accounts Receivable and subject to all applicableconfidentiality obligations;

###  

### (f)                                    allgoodwill associated with the Purchased Assets relating to MedCare’s Business atthe Leased Real Property; and

###  

### (g)                                 anyand all other assets of MedCare used exclusively for MedCare’s Business at theLeased Real Property, i.e., not otherwise used by MedCare in its infusion orother business and not otherwise used by MedCare in its Hurricane, WestVirginia branch.

###  

2.2                                 ExcludedAssets. Buyer is not purchasing the following (“**Excluded Assets**”):

 

### (a)          alltangible personal property owned by Curative-NY and Apex, including allequipment, furniture, fixtures, machinery, office furnishings, and leaseholdimprovements;

 

5

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### (b)         allof Curative-NY’s and Apex’s rights to the pharmacy licenses, permits,approvals, franchises, accreditations and registrations and other governmentallicenses, permits or approvals issued to Curative-NY and Apex;

###  

### (c)          allof Curative-NY’s and Apex’s interest in and to commitments, contracts, leasesand agreements;

###  

### (d)         allgoodwill associated with Curative-NY’s and Apex’s Businesses;

###  

### (e)          allinfusion pumps, pharmacy hoods and other equipment, contracts and leases (otherthan the Lease for the Leased Real Property) used by any Seller in connectionwith the operations of its infusion business;

###  

### (f)            allinventories of supplies, drugs, janitorial and office supplies and otherdisposables and consumables owned by Sellers, related to the operation ofSellers’ Business (collectively, the “**Inventory**”);

###  

### (g)         allsoftware licensed to and/or owned by Sellers or their Affiliates, includingJazz Rx and CPR+ software;

###  

### (h)         allbank accounts of Sellers;

###  

### (i)             allcash, cash equivalents and short-term investments of Sellers;

###  

### (j)             allTrade Names, except that PC Pharmacy may reference the names “MedCare” and “CriticalCare Systems” as the prior operator for a three (3) month period followingClosing in order to transition to the PC Pharmacy name;

###  

### (k)          anyassets or rights that relate to employee benefit plans; all books and recordsrelating to employees; and unemployment compensation, workers’ compensation andother credits, reserves or deposits with applicable Governmental Entitiesrelating to employees;

###  

### (l)             allclaims, rights, interests and proceeds with respect to Tax refunds resultingfrom periods prior to the Closing Date, and the right to pursue appeals ofsame;

###  

### (m)       thecorporate charter, taxpayer and other identification numbers, corporate seals,minute books, and other documents relating to the organization, maintenance,and existence of each Seller;

###  

### (n)         allvendor rebates payable to Sellers that relate to periods prior to the EffectiveTime;

###  

### (o)         allAccounts Receivable; and

###  

### (p)         anyother asset of Sellers listed on Schedule 2.2(p) or otherwise notspecifically referenced herein as a Purchased Asset.

###  

2.3                                 AssumedLiabilities. As of the Effective Time, Buyers shall be responsible for allliabilities and obligations arising after the Effective Time with respect toBuyers’ operation of the 

 

6

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Business and the PurchasedAssets (and for obligations arising and accruing after the Effective Time underthe Assumed Contracts and Leases (collectively, the “**Assumed Liabilities**”).

 

2.4                                 ExcludedLiabilities. Except for the Assumed Liabilities, which shall be liabilitiesand obligations of Buyer, Buyer shall not assume any liabilities or obligationsof any kind or nature, whether absolute, contingent, accrued, known or unknown,of Sellers or any Affiliate of a Seller or the Business.

 

2.5                                 Instrumentof Transfer. The sale of the Assets and the assumption of the AssumedLiabilities as herein provided shall be effected at Closing by the Assignment,Assumption and Bill of Sale Agreement in the form attached hereto as Exhibit2.5 (“**Bill of Sale**”).

 

2.6                                 Completionof Transfers.

 

### (a)                                  Theentire beneficial interest in and to, and the risk of loss with respect to, thePurchased Assets and the Assumed Liabilities shall, regardless of when legaltitle thereto shall be transferred to Buyer, pass to Buyer at Closing as of theEffective Time. All operations of the Business shall be for the account ofSellers up to the Effective Time and shall be for the account of Buyersthereafter. In the event legal title to any of the Purchased Assets or theAssumed Liabilities is not transferred at Closing, Seller shall hold suchPurchased Assets or Assumed Liabilities as nominee for Buyers until completionof such transfers.

###  

### (b)                                 Inthe event that the legal interest in any of the Purchased Assets or the AssumedLiabilities to be sold, assigned, transferred or conveyed pursuant to thisAgreement, or any claim, right or benefit arising thereunder or resultingtherefrom cannot be sold, assigned, transferred or conveyed hereunder as of theEffective Time because any waiting or notice period has not expired or anyConsents or Approvals required for such sale, assignment, transfer orconveyance have not been obtained or waived, the legal interest in suchPurchased Assets or Assumed Liabilities shall not be sold, assigned,transferred or conveyed unless and until such waiting or notice period shallhave expired or until Approval, Consent or waiver thereof is obtained. In suchevent, at Buyers’ option, Buyers may elect to waive the condition to Closingrequiring such Consent or Approval and proceed with the Closing or delayClosing until such Consent or Approval is obtained by Sellers and delivered toBuyer. If such Consent or Approval has not been obtained by December 9, 2005, Sellersmay elect to terminate this Agreement. During any such period, Sellers shall attheir expense, use reasonable diligent efforts to seek to obtain such Consents,Approvals or waivers as may be necessary to complete such transfers as soon aspracticable. Buyers will cooperate with Sellers efforts with respect thereto atBuyers’ expense. Notwithstanding the foregoing, to the extent a landlord orlessor under an Assumed Contract or Lease requires that a reasonableadministrative, processing, expediting or legal fee be paid in connection withobtaining Consent or Approval for assignment, Seller shall pay any such fee.

###  

### (c)                                  Inthe event Buyers elect to close prior to obtaining such Consent or Approval,(i) Sellers shall hold any such non-assigned, non-conveyed and non-transferredPurchased Assets or Assumed Liabilities for the benefit and at the risk ofBuyers and shall cooperate with Buyers in any lawful and reasonablearrangements designed to provide the benefits of ownership thereof to Buyers;and (ii) Sellers shall not be deemed to be in breach of 

 

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### any representation, warranty or covenantcontained herein as a result of not obtaining such Consent or Approval.

###  

# **ARTICLE 3CLOSING**

#  

Unless the parties hereto otherwise agree in writing, the actionscontemplated to consummate the transactions under this Agreement (the “**Closing**”) shall take place by facsimiletransmission of documents including counterpart signature pages (with hard copyto follow) on December 2, 2005 or as otherwise agreed by the parties (the “**Closing Date**”). The Closing shall occur ata time mutually determined by the parties or in such other manner as mutuallydetermined by the parties (including, without limitation, through the exchangeof counterpart signature pages by the parties by facsimile or other electronicmeans), and shall be deemed effective at 11:59 p.m. Eastern Time on the ClosingDate (the “**Effective Time**”).

 

# **ARTICLE 4PURCHASE PRICE**

#  

4.1                                 Paymentof Purchase Price. The total purchase price (“**Purchase Price**”) payable by Buyers to Sellers shall be equalto One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00). Thepayment of the Purchase Price shall be made by Buyers on the Closing Date inreadily available funds via wire transfer to accounts designated by each ofSellers.

 

4.2                                 PurchasePrice Allocation. The Purchase Price shall be allocated among the Assetspurchased hereunder in accordance with Section 1060 of the Code and as setforth on Schedule 4.2 attached hereto. Buyers and Sellers each herebycovenant and agree that none of them will take a position on any income taxreturn, before any governmental agency, or in any judicial proceeding that isin any way inconsistent with the allocation set forth on Schedule 4.2.Buyer and Sellers agree to make all filings required under Section 1060 of theCode consistent with the allocation of such consideration as set forth on Schedule4.2. Each party shall duly and timely file Form 8594 with its appropriatetax returns.

 

# **ARTICLE 5REPRESENTATIONS AND WARRANTIES OF SELLERS**

#  

Sellers hereby severally represent and warrant to Buyer that:

 

5.1                                 Organizationand Related Matters. Curative-NY is a corporation duly organized, validlyexisting and in good standing under the laws of the State of New York and isqualified to do business and in good standing in Alabama. Apex is a corporationduly organized, validly existing and in good standing under the laws of theState of California and is qualified to do business and in good standing in NewYork and Louisiana. MedCare is a corporation duly organized, validly existingand in good standing under the laws of the State of Delaware and is qualifiedto do business and is in good standing in Alabama, West Virginia andMississippi. Sellers have all necessary corporate power and authority toconduct the Business as now conducted. Sellers have the necessary corporatepower and authority to execute, deliver and perform this Agreement and anyrelated agreements to which they are a party.

 

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5.2                                 Authorization.The execution, delivery and performance of this Agreement and any relatedagreements by Sellers have been duly and validly authorized by all necessarycorporate action on the part of each Seller. This Agreement constitutes thelegal, valid and binding obligation of Sellers, enforceable against Sellers inaccordance with its terms except as such enforceability may be limited bybankruptcy, insolvency, reorganization, moratorium and other similar laws and equitableprinciples relating to or limiting creditors’ rights generally.

 

5.3                                 NoConflicts. The execution, delivery and performance of this Agreement bySellers will not (with notice or passage of time, or both) violate theprovisions of, or constitute a breach or default under, (a) the charterdocuments or bylaws of Sellers; or (b) any Law to which Sellers are subject, or(c) any material contract or agreement to which Sellers are a party.

 

5.4                                 NoBrokers or Finders. No agent, broker, finder, or investment or commercialbanker, or other Person or firm engaged by or acting on behalf of Sellers orany Affiliate of Sellers in connection with the negotiation, execution orperformance of this Agreement or the transactions contemplated by thisAgreement, is or will be entitled to any broker’s or finder’s or similar fee orother commission as a result of this Agreement or such transactions.

 

5.5                                 Titleto Purchased Assets. Sellers have good and marketable title to thePurchased Assets free and clear of all Encumbrances, except as set forth on Schedule5.5.

 

5.6                                 Paymentto Creditors. Sellers will supply Buyers with a complete and accurate listof secured creditors with respect to the Purchased Assets. Sellers will eitherpay all such amounts due or obtain releases of collateral prior to Closing andprovide Buyers with satisfactory evidence thereof.

 

5.7                                 ThirdParty Providers and Payors. Attached as Schedule 5.7 is a list ofSellers’ provider agreements, including the Preferred Provider Agreement, thirdparty prescription payors and providers with provider numbers.

 

# **ARTICLE 6ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SELLERS**

#  

Sellers hereby severally represent and warrant to Buyer that withrespect to the Business of the respective Seller:

 

6.1                                 LegalProceedings. (i) There are no claims, proceedings or investigations pendingor, to the Knowledge of Seller, threatened against Seller with respect to anyaspect of the Business; (ii) there are no payments owing from Seller to anythird-party payor other than overpayments being processed in the OrdinaryCourse; and (iii) there has not been, for the past three years, any dispute orAction with any person who was a patient of Seller’s Business or with any thirdparty payor that relates to matters other than routine payment adjustments orreconciliations in the Ordinary Course.

 

6.2                                 Compliancewith Laws. Seller has not been charged with or given notice of, and is incompliance with all applicable material Laws and Orders by any GovernmentalEntity relating to the Business.

 

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6.3                                 FinancialInformation. Seller has provided Buyer with the pro forma financialschedules prepared by Seller and related to the Business and attached at Schedule6.3 (the “**Business Financials**”).Except as set forth on Schedule 6.3, the Business Financials fairlypresent the financial status of Seller with respect to the Business. TheBusiness Financials are unaudited and have been prepared from the books andrecords of Seller maintained in the Ordinary Course, and are accurate in allmaterial respects.

 

6.4                                 Taxand Other Returns and Reports. All required Tax Returns have been timelyand properly filed by or on behalf of Seller and Seller has paid all Taxes duewith respect to the Business and the Purchased Assets used in connection withthe Seller’s Business for all periods ending on or before the Closing Date.There are no Encumbrances with respect to Taxes upon any of the PurchasedAssets used in connection with the Business, except Encumbrances for current Taxesnot yet due. All required Tax Returns relating to the Seller’s Business,including amendments to date, have been prepared in good faith by or on behalfof Seller and, to the Knowledge of Seller, are complete and accurate in allmaterial respects. All Taxes Seller is required by Law to withhold or tocollect for payment in connection with the Business have been duly withheld andcollected and have been paid or accrued on Seller’s books. There is noextension or waiver of the period for assertion of any Taxes against Selleraffecting the Purchased Assets used in connection with Seller’s Business.

 

6.5                                 AssumedContracts and Leases. Seller has performed all material obligations undereach Assumed Contract and Lease and is not in breach or default, nor do circumstancesexist which, with or without notice or lapse of time or both, would constitutea breach or default under any Assumed Contract or Lease by Seller (or, to theKnowledge of Seller, any other party or obligor with respect thereto). None ofthe Assumed Contracts and Leases contain covenants that in any way purport torestrict the business activity or limit the freedom of Seller to engage in anyline of business or to compete with any person. Except as disclosed on Schedule6.5, (a) none of the Assumed Contracts and Leases requires the Consent ofany third party prior to the consummation by the parties of the transactionscontemplated by this Agreement; (b) the Assumed Contracts and Leases are validand effective in accordance with their terms; (c) provided that necessaryConsents and Approvals to assignment are obtained, the continuation, validityand effectiveness of the Assumed Contracts and Leases will not be affected bythe transactions contemplated hereunder; and (d) such transactions will, subjectto obtaining the requisite Consent of another party thereunder, not result in abreach of, or default under any of the Assumed Contracts and Leases. There isno actual or, to the Knowledge of Seller, threatened termination, cancellationor limitation of any Assumed Contract and Lease. Regardless of whether aConsent requirement is disclosed on Schedule 6.5, Seller will obtainsuch Consent prior to Closing except as otherwise permitted by a written waiverfrom a Buyer.

 

6.6                                 Licensesand Permits. Seller holds all licenses and permits that are necessary toconduct its Business as now conducted, and all such licenses and permits arevalid and in full force and effect. No notice from any authority with respectto the suspension, revocation, or termination of any license or permit has beenreceived by Seller and, to the Knowledge of Seller, there is no proposed orthreatened issuance of any such notice. Sellers will cooperate with Buyers inthe application for new licenses and permits with respect to the operation ofMedCare’s business at the Leased Real Property. In furtherance of theforegoing, MedCare will execute a Power of Attorney in the form attached as Exhibit6.6 attached hereto.

 

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6.7                                 Insurance.Seller is insured or self-insured against risks normally insured against bysimilar businesses under similar circumstances, including but not limited toprofessional liability coverage and workers’ compensation insurance, whichcoverage will remain in full force and effect in accordance with policy termswith respect to all events occurring prior to the Effective Time, regardless ofwhether the claim is asserted before or after the Effective Time.

 

6.8                                 LaborMatters. Except as set forth on Schedule 6.8:

 

### (a)                                  NeitherSeller nor Seller’s Business is a party to or bound by any collectivebargaining, works council, union representation or similar agreement orarrangement;

###  

### (b)                                 Thereis no controversy existing, pending or, to the Knowledge of Seller, threatenedwith any association or union or collective bargaining representative of theemployees of Seller pertaining to the Business;

###  

### (c)                                  Thereis no charge or complaint relating to unfair labor practices pending againstSeller’s Business, nor is there any labor strike, work stoppage, laborgrievance or other labor dispute pending or, to the Knowledge of Seller,threatened against Seller with respect to the Business;

###  

### (d)                                 Sellersare neither engaging nor have engaged in any unfair labor practice;

###  

### (e)                                  Thereis no labor strike, dispute, slowdown or stoppage pending or, to the Knowledgeof Seller, threatened against Seller with respect to the Business;

###  

### (f)                                    Noright of representation exists respecting Seller’s employees who are employedin the Business;

###  

### (g)                                 Nocollective bargaining agreement is currently being negotiated and no organizingeffort is currently being made with respect to Seller’s employees who areemployed in connection with the Business; and

###  

### (h)                                 Tothe Knowledge of Seller, no current or former employee of Seller in connectionwith the Business has any claim against Seller on account of or for (i)overtime pay, other than overtime pay for the current payroll period, (ii)wages or salary (excluding current bonus accruals and amounts accruing underpension and profit sharing plans) for any period other than the current payrollperiod, (iii) vacation, time off or pay in lieu of vacation or time off, otherthan that earned in respect of the current fiscal year, or (iv) any violationof any Law relating to minimum wages or maximum hours of work.

###  

6.9                                 EmployeeBenefits. Buyer will not have any obligation or liability with respect to,or on account of, any Benefit Plan maintained by Seller or any Affiliate ofSeller. For the purposes of this Section 6.9, “**Benefit Plan**” means any (a) bonus, stock option, stockpurchase, phantom stock, incentive compensation, deferred compensation,pension, profit sharing, thrift, savings, retirement, leave of absence, layoff,vacation, day or dependent care, legal services, cafeteria, life, health,accident, disability, hospitalization, dental, workmen’s compensation or otherinsurance, severance, separation, voluntary employees’ beneficiary associationor trust, tuition, company car, club dues, income tax preparation, sick leave,maternity, paternity or other family leave or other employee benefit, welfareor fringe benefit plan, practice, policy, agreement or arrangement, whetherqualified 

 

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or nonqualified, whether or notin writing and whether or not considered legally binding, including, but notlimited to, any “employee benefit plan” within the meaning of Section 3(3) ofERISA or a multiemployer plan within the meaning of Section 3(37) of ERISA or(b) any employment, supplemental unemployment, layoff, consulting, “goldenparachute”, engagement or retainer agreement or arrangement. Seller hascomplied, in all material respects, with its obligations (including obligationsto make contributions) under the Benefit Plans and such Benefit Plans have beenand are materially in compliance with applicable Law. No Benefit Plan is amultiemployer plan or single-employer plan as described in Section 4001 ofERISA, and Seller has never contributed nor been obligated to contribute to(nor has it been a member of a controlled group in which any other membercontributed to or had an obligation to contribute to) any such plan. Inaddition, Seller has not terminated a Benefit Plan which is an employee pensionbenefit plan as defined in Section 3(2) of ERISA within the 6-year periodpreceding the Closing Date.

 

6.10                           GovernmentPayment Programs. Seller is certified to participate in the GovernmentPayment Programs and complies in all material respects with all applicablestate and federal conditions of participation applicable to such GovernmentPayment Programs in connection with the Business. Except as set forth on Schedule6.10, Seller is not a party to, or bound by, any Order or corporateintegrity agreement with any Government Payment Program nor has Seller, duringthe last three (3) years, been audited or otherwise examined by any GovernmentPayment Program in connection with the Business. Seller has filed on a timelybasis all claims or other reports required to be filed in order to receivereimbursement with respect to the provision of services, products and suppliescovered under any Government Payment Program, in accordance with all Laws andrequirements applicable to the Government Payment Programs. Neither Seller norany of its officers, directors, shareholders, or employees (a) has beendebarred, excluded or suspended from participation in any Government PaymentProgram or (b) to the Knowledge of Seller, is the target or subject of anycurrent or potential investigation relating to any Government PaymentProgram-related offense.

 

6.11                           Absenceof Certain Changes. Except as set forth in Schedule 6.11 or asexpressly required, permitted or contemplated hereby, since July 1, 2005,Seller has conducted the Business only in the Ordinary Course and (a) there hasnot been any damage to or destruction or loss of any Purchased Asset used inconnection with the Business that would have a material adverse effect on theBusiness, whether or not covered by insurance, (b) none of the Purchased Assetsused in connection with the Business has been mortgaged, pledged or madesubject to any Encumbrance, and (c) there has not been any termination of orreceipt of notice of termination of any Assumed Contract or Lease.

 

6.12                           TransactionsWith Affiliates. Except as set forth on Schedule 6.12, Seller doesnot have any contract, agreement or other arrangement providing for theemployment of, furnishing of goods or services by, rental of real or personalproperty from or to or otherwise requiring payments or involving other obligationsto any of its Affiliates or any officers or directors of Seller related to theBusiness.

 

6.13                           Litigation.Except as set forth on Schedule 6.13, no Seller is, with respect to theBusiness, (i) subject to any outstanding injunction, judgment, order, decree,ruling or charge, (ii) party to or the subject of any action, suit, proceeding,hearing or, to Sellers’ Knowledge, investigation of, in or before any court orquasi-judicial or administrative agency of any federal, state, local or foreignjurisdiction or before any arbitrator, or (iii) the subject of any pending or,to Sellers’

 

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Knowledge, threatened claim,demand or notice of violation or liability from any Person. With respect to anymatters set forth on Schedule 6.13, Sellers will retain all liability andresponsibility with respect thereto, and Sellers have adequate insurance inplace to cover any requirements arising therefrom.

 

6.14                           UndisclosedLiabilities. Seller does not have any liabilities related to the Businesswhatsoever, known or unknown, asserted or unasserted, liquidated orunliquidated, accrued, absolute, contingent, or otherwise, and there is nobasis for any claim against Seller for any such liability, except: (a) as setforth in Schedule 6.14; or (b) as incurred in the Ordinary Course (noneof which has had or may reasonably be expected to have a material adverseeffect on the Business).

 

6.15                           Environmental.No Seller has received oral or written notice of any actual or potential claims,orders, directives, citations or causes of action based on actual or allegedviolations of any local, state or federal statutes, ordinances or regulationsdealing with protection of the environment or public health and safety, orcommon law claims or causes of action based upon such Seller’s actual oralleged involvement with or use of any substance regulated by local, state orfederal statutes, ordinances or regulations dealing with protection of theenvironment or public health and safety.

 

# **ARTICLE 7REPRESENTATIONS AND WARRANTIES OF BUYERS**

#  

Buyers hereby severally represent and warrant to Sellers that:

 

7.1                                 Organizationand Related Matters. PC Pharmacy is a corporation duly organized, validlyexisting and in good standing under the laws of the State of Rhode Island andis qualified to do business and in good standing in the States of Alabama andMississippi. PC Pharmacy Direct is a corporation duly organized, validlyexisting and in good standing under the laws of the State of Ohio and isqualified to do business and in good standing in Louisiana, New York, and WestVirginia. Buyers have all necessary corporate power and authority to conducttheir business as now conducted. Buyers have the necessary corporate power andauthority to execute, deliver and perform this Agreement and any relatedagreements to which any of them is a party.

 

7.2                                 Authorization.The execution, delivery and performance of this Agreement and any relatedagreements by Buyers have been duly and validly authorized by all necessary corporateaction on the part of Buyers. This Agreement constitutes the legal, valid andbinding obligation of Buyers, enforceable against Buyers in accordance with itsterms except as such enforceability may be limited by bankruptcy, insolvency,reorganization, moratorium and other similar laws and equitable principlesrelating to or limiting creditors’ rights generally.

 

7.3                                 NoConflicts. The execution, delivery and performance of this Agreement byBuyers will not (with or without notice or passage of time, or both) violatethe provisions of, or constitute a breach or default under, (a) the charterdocuments or bylaws of Buyers; or (b) any Law to which Buyers are subject, or(c) any material contract or agreement to which any Buyer is a party.

 

7.4                                 LegalProceedings. There are no claims, proceedings or investigations pending or,to the Knowledge of any Buyer, threatened relating to or affecting such Buyerbefore any Governmental Entity in which an adverse determination wouldmaterially adversely affect the 

 

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properties or businesscondition (financial or otherwise) of such Buyer. No Buyer is subject to anyOrder which materially adversely affects the condition (financial orotherwise), operations or business of such Buyer.

 

7.5                                 Abilityto Perform; Solvency. Buyers have the ability to obtain funds in cash inamounts equal to the Purchase Price and will at the Closing have immediatelyavailable funds in cash, which are sufficient to pay the Purchase Price. Buyersare not insolvent and will not be rendered insolvent as a result of thetransactions contemplated by this Agreement. For purposes hereof, the term “**solvency**” means that: (a) the fair salablevalue of a Buyer’s tangible assets is in excess of the total amount of itsliabilities (including for purposes of this definition all liabilities, whetheror not reflected on a balance sheet prepared in accordance with U.S. generallyaccepted accounting principles, and whether direct or indirect, fixed orcontingent, secured or unsecured, and disputed or undisputed); and (b) a Buyeris able to pay its debts or obligations in the ordinary course as they mature.

 

7.6                                 NoBrokers or Finders. No agent, broker, finder, or investment or commercialbanker, or other Person or firm engaged by or acting on behalf of Buyer or anyAffiliate of Buyer in connection with the negotiation, execution or performanceof this Agreement or the transactions contemplated by this Agreement, is orwill be entitled to any broker’s or finder’s or similar fee or other commissionas a result of this Agreement or such transactions.

 

# **ARTICLE 8BUYERS’ CONDITIONS PRECEDENT TO CLOSING**

#  

The obligations of Buyers to consummate the transactions described inthis Agreement are subject to the satisfaction, before the Effective Time, ofthe following conditions precedent, any of which may be waived in writing byBuyers:

 

8.1                                 Representationsand Warranties to be True and Correct. The representations and warrantiesof Sellers set forth in this Agreement and in the schedules delivered pursuanthereto shall be true and correct in all respects as of the Effective Time.

 

8.2                                 SupportingDocuments. Buyer shall have received the documents set forth below:

 

### (a)                                  Acertificate signed by an authorized officer of each Seller dated the ClosingDate and certifying that he/she knows of no facts which would cause such Sellerto be in breach of any of its representations and warranties hereunder as ofthe Effective Time;

###  

### (b)                                 TheBill of Sale signed by Sellers;

###  

### (c)                                  ThePower of Attorney signed by MedCare;

###  

### (d)                                 TheAssignment of Lease and Assumption Agreement in the form attached as Exhibit8.2(d) (the “**Lease Assignment**”)signed by MedCare and the Landlord; and

###  

### (e)                                  Suchadditional supporting documents and other information with respect to theoperations and affairs of Sellers as the Buyer may reasonably request.

 

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8.3                                 Undertakingsand Agreements. Sellers shall have satisfied and fulfilled all of theundertakings and agreements required to be satisfied and fulfilled before theEffective Time by Sellers under this Agreement.

 

8.4                                 Pay-offLetters. Buyers shall have received copies of pay-off letters or releasesof collateral, as applicable, from all creditors of Sellers in form and substanceacceptable to Buyers with respect to security interests of such creditors, ifany, in the Purchased Assets.

 

8.5                                 Schedules.Except with respect to Schedule 4.2, Sellers will have delivered theSchedules and Buyers will be satisfied therewith in Buyers’ sole discretion.Buyers acknowledge and agree that Sellers may provide Buyers with updates andsupplements to the schedules up to the Closing.

 

# **ARTICLE 9SELLERS’ CONDITIONS PRECEDENT TO CLOSING**

#  

The obligation of Sellers to consummate the transactions described inthis Agreement is subject to the satisfaction, before the Effective Time, ofthe following conditions precedent, any of which may be waived in writing bySellers:

 

9.1                                 Representationsand Warranties to be True and Correct. The representations and warrantiesof Buyer set forth in this Agreement shall be true and correct in all respectsas of the Effective Time.

 

9.2                                 SupportingDocuments. Sellers shall have received the documents set forth below:

 

### (a)                                  Acertificate signed by an authorized officer of each Buyer dated the ClosingDate and certifying that he/she knows of no facts which would cause such Buyerto be in breach of any of its representations and warranties hereunder as ofthe Effective Time;

###  

### (b)                                 TheBill of Sale signed by Buyers;

###  

### (c)                                  ThePower of Attorney signed by PC Pharmacy; and

 

### (d)                                 Suchadditional supporting documents and other information with respect to theoperations and affairs of Buyer as Sellers may reasonably request.

###  

9.3                                 Undertakingsand Agreements. Buyer shall have satisfied and fulfilled all of theundertakings and agreements required to be satisfied and fulfilled before theEffective Time by Buyer under this Agreement.

 

9.4                                 Pay-offLetters. Sellers shall have received copies of pay-off letters or releasesof collateral, as applicable, from all creditors of Sellers with respect tosecurity interests of such creditors, if any, in the Purchased Assets.

 

9.5                                 PurchasePrice. Buyer shall pay the Purchase Price as required in Article 4.

 

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# **ARTICLE 10ADDITIONAL COVENANTS AND AGREEMENTS**

#  

10.1                           EmploymentMatters. 

 

### (a)                                  Onor after the Closing Date, Buyer may, but is not required to, offer employmentto any or all of Sellers’ employees listed in Schedule 10.1(a) andemploy any of the employees who accept the offer of employment (the “**Hired Employees**”). Buyer shall not contactany of Sellers’ employees prior to the date hereof without Seller’s advancewritten consent. With respect to any Hired Employees that are subject tononcompetition agreements with Sellers, they will be released to the extentnecessary for them to work for Buyers.

###  

### (b)                                 Onand after the Closing Date, Hired Employees shall be eligible for all employeebenefit plans sponsored by Buyer subject to the eligibility provisions of suchplans. Hired Employees shall be given credit for periods of employment withSellers, as applicable, prior to the Closing Date for purposes of determiningeligibility to participate, the amount of benefits, and vesting under suchplans, and pre-existing condition limitations will be waived with respect toHired Employees and their covered dependents unless such pre-existing conditionlimitations were applicable prior to the Closing Date under Sellers’ BenefitPlans, subject to Buyers’ plan requirements. Buyers further agree to notifySellers of the Hired Employees.

###  

### (c)                                  Buyersand Sellers acknowledge and agree that Buyers have not offered any terms ofemployment to Sellers or any of Sellers’ employees as consideration for thesale contemplated herein. It is agreed that in the event any employees ofSellers shall be employed by Buyers in Buyers’ sole discretion, such employeesshall be employed at will, and Buyers shall have no contractual obligation toSellers with regard to retention at such employment. Sellers retain allliabilities with respect to Sellers’ employees and all of Sellers’ BenefitPlans.

###  

10.2                           Accessto Information; Preservation of Records; Cooperation. 

 

### (a)                                  Sellerswill provide Buyers and their representatives access at all reasonable timesbetween the date of this Agreement and Closing, to the Purchased Assets and thebooks and records of the Business, and will furnish Buyers with such additionalfinancial and operating data as Buyers may reasonably request.

###  

### (b)                                 TheParties recognize that, in the future, litigation may arise relating to thePurchased Assets or the Business and the conduct thereof which may relate inpart, directly or indirectly, both to the period prior to the Closing and theperiod subsequent to the Closing. Each of the parties agrees that, to theextent reasonable under the circumstances and at the reasonable request ofanother party, it will provide to the requesting party information, records anddocuments in its possession relating to the Purchased Assets and the Businessto assist the requesting party in connection with any such litigation orpotential litigation in which such requesting party is or may be involved.

###  

### (c)                                  Buyershall keep and preserve all Patient Files for a period equal to the greater of(i) ten years following the Closing Date, or (ii) one year past the applicablestatute of limitations for claims. Buyer acknowledges that the Patient Filesare subject to rules and regulations concerning confidentiality and shall abideby any such rules and regulations relating 

 

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### to the Patient Files inaccordance with applicable law (including, if applicable, Section 1861(v)(i)(l)of the Social Security Act (42 U.S.C. § 1395x(vxi)(I))) and requirements ofrelevant insurance carriers. Further, Buyers and Sellers agree to enter intoany agreements that either party reasonably determines may be required by law,including, but not limited to, entering into a Business Associate Agreement ascontemplated by the Health Insurance Portability and Accountability Act of1996, and the regulations promulgated thereunder. Buyer shall maintain thePatient Files in a manner consistent with Buyer’s policies and proceduresapplicable to patient records generated by Buyer after the Closing Date,provided that the remainder of this Section 10.2 shall control in the event ofany conflict between such policies and procedures and this Section 10.2.

###  

### (d)                                 Atany time following the Closing Date, Buyer will cooperate in good faith withSellers and shall promptly provide or cause to be provided to any Seller, at aSeller’s sole cost and expense, copies of and reasonable access during normalbusiness hours to any Patient Files that are requested by a Seller for anyreasonable business purposes, including, but not limited to, defending a claimor lawsuit by a patient or responding to an audit, investigation or otherinquiry by any Governmental Entity or third-party payor, or resolving unbilledor outstanding Accounts Receivable, subject to any and all applicableconfidentiality obligations.

###  

### (e)                                  Notwithstandinganything to the contrary in this Agreement, the provisions of Sections 10.2(a)and 10.2(d) shall not controvert any discovery process in any Action in whichBuyer, on the one hand, and Sellers, on the other hand, are adverse parties.

###  

10.3                           Confidentiality.Buyer and Sellers recognize and agree that all information, instruments,documents and details concerning the business and operations of them and theirAffiliates (“**Confidential Information**”)are strictly confidential, and Buyer and each Seller expressly covenants andagrees that it will not, nor will it allow any of its Affiliates and/or its ortheir respective officers, directors, employees, or agents to announce ordisclose any matters relating to any Confidential Information of the otherparty, the business of the other party or this Agreement, its negotiation,terms, provisions or conditions, including purchase price, without the priorwritten consent of the other party, except as may be reasonably necessary toeffectuate the transactions contemplated hereby; provided, however, that Buyerand Sellers shall not be prohibited from making any public announcement orother disclosure of the sale and acquisition of the Purchased Assets as suchparty’s counsel shall deem it necessary to maintain compliance with and toprevent violation of applicable federal or state securities or other laws orthe rules or regulations of any stock exchange. Notwithstanding the foregoing,such disclosing party shall promptly notify the other party of such requireddisclosure prior to making such disclosure and, to the extent feasible, shallconfer with the other party prior to making such disclosure as to the content.Information (a) ascertainable or obtained from public or published information,(b) received from a third party not known by a party to be under an obligationto the other party or any Affiliate of such other party to keep suchinformation confidential, (c) which is or becomes known to the public (otherthan through a breach of this Agreement), or (d) which was in the other party’spossession prior to disclosure thereof to such party in connection herewithshall not be deemed Confidential Information.

 

10.4                           NoIntent to Induce Referrals. Buyer and Sellers acknowledge and agree that noportion of the Purchase Price payable by Buyer to Sellers pursuant to thisAgreement is intended to represent a payment for any referral of futurebusiness to Buyer, or to any of Buyer’s officers, 

 

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directors, employees, orAffiliates, that is prohibited by 42 U.S.C. §1320a-7b, commonly referred to asthe “**Anti-Kickback Statute**.”

 

10.5                           PatientNotification; Publicity. Following the Closing Date, Buyer may providewritten notification to all patients of the Business that Buyer has acquiredthe Business from Sellers and will continue to provide the products andservices to patients as previously provided by Seller. The content and timingof any such communications shall be mutually agreed upon by Buyer and Sellers. Exceptas permitted under Section 10.3 above, no party nor any Affiliate of a partyshall issue any press release, publicity statement or other public noticerelating to this Agreement, or the transactions contemplated by this Agreement,without first consulting with the other party and subject to the other party’sreasonable approval of the content thereof; provided, however, that theforegoing shall not prohibit a party from making any such press release,publicity statement or other public notice to the extent that the legal counselof the disclosing party advises that such disclosure is required by law,including any securities laws. Buyer shall not use any Trade Names in anycommunications or publications without the prior consent of Sellers except inconnection with the notification required hereunder for a ninety (90) dayperiod following Closing, and except as set forth in Section 2.2(j).

 

10.6                           DEANotification. Sellers shall provide all required notification to the UnitedStates Drug Enforcement Administration (the “**DEA**”)of the license numbers and locations to which the Patient Files are beingtransferred.

 

10.7                           TaxMatters; Prorations.

 

### (a)                                  Sellersshall pay all applicable sales, use or other similar Taxes that are, or become,due or payable as a result of the sale, conveyance, assignment, transfer ordelivery of the Purchased Assets hereunder levied on Sellers.

###  

### (b)                                 Allpersonal property, ad valorem and any other local or state taxes relating tothe Purchased Assets or the Business which shall be accrued but unpaid as ofthe Closing Date shall be prorated to the Closing Date as agreed to among theparties and shall be paid by Sellers to Buyer or Buyer to Sellers, as the casemay be, within 30 days after their assessment or due date.

###  

### (c)                                  Sellers,upon request of Buyer, shall use its reasonable efforts to provide or obtainfrom any taxing authority any certificate or other document necessary tomitigate, reduce or eliminate any Taxes (including additions thereto orinterest and penalties thereon) that otherwise would be imposed with respect tothe transactions contemplated in this Agreement.

###  

### (d)                                 Paymentsrequired under the Real Property Lease or any Assumed Contracts and Leases willbe pro-rated between Sellers and Buyers as of the Effective Time.

 

10.8                           PatientFile Delivery. Sellers will work in good faith with Buyers to transfer thePatient Files in the most effective and efficient manner promptly followingClosing.

 

10.9                           Useof Computers. At no additional cost to Buyers, Sellers agree that Buyerswill have “read only” access to the pharmacy application software for eachspecified location for a period of one hundred twenty (120) days following theEffective Time. Sellers warrant that such 

 

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software shall be in workingorder as of the Effective Time and for a period of 120 days following Closing,and that Sellers are not prohibited by their licenses from allowing “read only”access to Buyers. Notwithstanding any of the foregoing, the computer(s),including the hardware and printers, used in the Business at the Leased RealProperty location are included in the Purchased Assets.

 

10.10                     PhoneSystem and Phone Numbers. At no additional cost to Buyers, PC Pharmacy willhave the right to use the phone system at the Leased Real Property for ninety(90) days following the Effective Time. MedCare will continue to make anyrequired payments for such phone system during such time. At the end of suchninety (90) days, MedCare will retrieve the phone system from the Leased RealProperty. Notwithstanding the foregoing, to the extent set forth in Section 2.1,certain actual phone numbers and lines are included in the Purchased Assets. Inaddition, Sellers will take reasonable steps to cause any telephone andfacsimile numbers and lines of the Business which cannot be conveyed to Buyersunder Section 2.1 to cause those numbers to be forwarded to the applicableBuyer’s location, at such Buyer’s expense.

 

10.11                     OrdinaryCourse. During the period from the date of this Agreement through theEffective Time, Sellers will continue to operate the Business in the OrdinaryCourse, including maintaining the Purchased Assets, performing all obligationsunder its contracts, agreements and leases, maintaining its relationship withcustomers, patients and vendors, and compliance with all applicable Laws.

 

# **ARTICLE 11RESTRICTIVE COVENANTS**

#  

11.1                           Restrictionson Sellers’ Competitive Activities.

 

### (a)                                  Sellersagree that, after the Closing, Buyer will be entitled to the goodwill and goingconcern value of Sellers’ business of providing Synagis and to be entitled toprotect and preserve the same to the maximum extent permitted by Law. Sellersalso acknowledge that their management contributions to Sellers’ business ofproviding Synagis have been uniquely valuable and involve proprietaryinformation that would be competitively unfair to use or to make available toany competitor providing Synagis. For these and other reasons and as aninducement to Buyer to enter into this Agreement, Sellers agree that, for aperiod of three (3) years after the Closing Date (such period to be extended bythe duration of any period of violation of, or any period of litigation toenforce, the covenants herein), neither Sellers nor any of their Affiliateswill, directly or indirectly, for their own benefit or as agent for another,(i) carry on or participate in the ownership, management or control of anyother present or future business enterprise that competes in the Territory withBuyer in the activities of providing Synagis in the Territory, or (ii) hire,engage, employ or interfere with or attempt to hire, engage, employ orinterfere with any employees, representatives or agents of Buyers or anyAffiliate of Buyers engaged in providing Synagis in the Territory.

###  

### (b)                                 Nothingcontained herein shall limit: (i) the right of any Seller or its Affiliates, asan investor, to hold and make investments in securities of any corporation orlimited partnership that is registered on a national securities exchange oradmitted to trading privileges thereon or actively traded in a generallyrecognized over the counter market, provided such Seller’s and its Affiliates’equity interest therein (in the aggregate) does not exceed 3% of the outstandingshares or interests in such corporation or partnership that is a competing 

 

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### business; (ii) the right ofSellers and their Affiliates to be acquired by, through merger, consolidation,member substitution or otherwise, an existing (as of the Closing Date) entitywhich already competes or that owns or controls an entity which alreadycompetes with Buyer in the activities of providing Synagis in the Territory atthe time of such acquisition; (iii) the right of Sellers and their Affiliatesto operate their infusion business and injectable drug business which isincidental to their infusion business (other than Synagis) in the Territory;(iv) the right of Sellers and their Affiliates to provide on behalf of Buyer orits Affiliates services and/or items pursuant to the Agreement for PharmacyServices dated May 1, 2005 between PharmaCare, Inc. and Curative HealthServices, Inc. (the “**Preferred ProviderAgreement”)**; or (v) the right of Sellers and their Affiliates toprovide supplies and products and related services, including Synagis and allinjectable drugs, in areas outside the Territory.

###  

### (c)                                  Sellerswill (or will cause their Affiliates to), to the extent permitted by law andassignable by Sellers (or their Affiliates), assign to Buyers Sellers’ rightsas to that portion of each existing noncompetition covenant which wouldrestrict an employee of the Business, other than the Hired Employees, fromengaging in the business of providing Synagis, including the right to enforcesuch assigned portion of the noncompetition covenant at Buyer’s expense.Nothing herein shall be deemed to assign any of Sellers’ or their Affiliates rightswhich would restrict an employee of the Business from engaging in businessesother than Synagis which may be covered by such noncompetition covenants, andSellers and their Affiliates retain all of their rights to enforce suchnoncompetition covenants.

###  

11.2                           Successors.****Notwithstanding anything herein to thecontrary, the covenants in this Article 11 shall be of no further force oreffect in the event Sellers are acquired by, through merger, consolidation,member substitution or otherwise, an existing (as of the Closing Date) entitywhich already competes or that owns or controls an entity which competes withSellers or Buyer in the activities of the Business in the Territory at the timeof such acquisition.

 

11.3                           SpecialRemedies and Enforcement. Buyer and Sellers recognize and agree that abreach by any of the parties of any of the covenants set forth in this Article11 could cause irreparable harm to Buyer in the case of a breach by a Sellerand to Sellers in the case of a breach by Buyer, that such party’s remedies atLaw in the event of such breach would be inadequate, and that, accordingly, inthe event of a breach a restraining order or injunction or both may be issuedagainst the breaching party in addition to any other rights and remedies whichare available to the harmed party(ies). If this Article 11 is more restrictivethan permitted by the Laws of any jurisdiction in which the harmed party(ies)seek enforcement hereof, this Article 11 will be limited to the extent requiredto permit enforcement under such Laws.

 

# **ARTICLE 12SURVIVAL; INDEMNIFICATION**

#  

12.1                           Survival.Except as expressly set forth in this Agreement to the contrary, allrepresentations, warranties, covenants, agreements and indemnifications ofBuyer and Sellers contained in this Agreement or in any document deliveredpursuant hereto shall be deemed to be material and to have been relied upon byBuyer and Sellers, respectively, and shall continue to be fully effective andenforceable following the Closing Date for one (1) year and shall thereafter beof no further force and effect, except that the representations and warrantiesin Sections 5.1, 5.2, 5.5, 7.1 and 7.2 shall survive without limitation as totime, and except covenants contained in Article 10 

 

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and Article 11 shall continueto be fully effective and enforceable following the Closing Date for theduration set forth therein, and that the representations, warranties andcovenants contained in Section 10.7, shall survive until the later of the finalresolution of any judicial or administrative proceeding involving any such Taxor expiration of any statute of limitations (including any statute ofsuspensions, tollings or extensions thereof). Any agreements entered into inconnection with this Agreement shall be subject to the survival limitations setforth therein.

 

12.2                           Obligationsof Sellers and Parent. 

 

### (a)                                  Sellersand Parent agree to jointly and severally indemnify and hold harmless Buyers,including their directors, officers, employees, Affiliates, agents,representatives and assigns (“**BuyerIndemnified Parties**”), from and against any and all Losses of aBuyer Indemnified Party, directly or indirectly, as a result of, in connectionwith, or based upon or arising from any of the following: (a) any breach or nonperformance of any of the representations, warranties, covenants or agreementsmade by a Seller in or pursuant to this Agreement or any other agreemententered into by the parties in connection with this Agreement, subject to theapplicable expiration period set forth in Section 12.1; (b) the failure of a Sellerto perform fully any covenant, provision or agreement to be performed orobserved by it pursuant to this Agreement or any other agreement entered intoby the parties in connection with this Agreement; or (c) any third party orother claims relating to the Business or the Purchased Assets or regarding theconduct of the Business arising prior to the Effective Time including, withoutlimitation, any claims made by a Government Payment Program arising fromconduct or claims filed prior to the Effective Time. Seller agrees to reimbursethe Buyer Indemnified Party promptly upon demand for any unreimbursed paymentmade or Loss suffered by such Buyer Indemnified Party at any time after theClosing Date in respect of any Loss to which the foregoing indemnity relates.

###  

### (b)                                 Inaddition to any other indemnification granted herein and notwithstanding thesurvivability or limits, if any, of any representation contained herein or theabsence of any representation herein, Sellers and Parent agree to jointly andseverally indemnify and hold harmless Buyer from and against all Loss,including a Seller’s liability for its own Taxes or a Seller’s liability, ifany (for example, by reason of transferee liability) for Taxes of otherspayable with respect to Taxes claimed or assessed against Buyer relating to thePurchased Assets and the Business (a) for any taxable period ending on orbefore the Closing Date or as a result of this transaction; (b) for any taxableyear or period commencing prior to the Closing Date and ending after theClosing Date for an amount equal to the portion of such Taxes that relate tothe taxable period ending on the Closing Date.

###  

12.3                           Obligationsof Buyers. Buyers agree to jointly and severally indemnify and holdharmless Sellers, including their directors, officers, employees, Affiliates,agents, representatives and assigns (“**SellerIndemnified Parties**”), from and against any and all Losses of aSeller Indemnified Party, directly or indirectly, as a result of, in connectionwith, or based upon or arising from any of the following: (a) any breach or nonperformance of any of the representations, warranties, covenants or agreementsmade by a Buyer in or pursuant to this Agreement or any other agreement enteredinto by the parties in connection with this Agreement, subject to theapplicable expiration period set forth in Section 12.1; (b) the failure of aBuyer to perform fully any covenant, provision or agreement to be performed orobserved by it pursuant to this Agreement or any other agreement entered intoby the parties in connection with this Agreement; or (c) any third party orother claims 

 

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relating to the Business orPurchased Assets or regarding the conduct of the Business and arising after theEffective Time. Buyers agree to reimburse Seller Indemnified Party promptlyupon demand for any unreimbursed payment made or Loss suffered by such SellerIndemnified Party at any time after the Closing Date in respect of any Loss towhich the foregoing indemnity relates.

 

12.4                           Procedure.

 

### (a)                                  Inthe event any Person or entity not a party to this Agreement shall make ademand or claim or file or threaten to file or continue any lawsuit, whichdemand, claim or lawsuit may result in liability to an Indemnified Party inrespect of matters embraced by the indemnity under this Agreement (a “**Third Party Claim**”), or in the event that apotential Loss comes to the attention of any party in respect of mattersembraced by the indemnity under this Agreement, then the party receiving noticeor becoming aware of such event shall promptly deliver notice (each, a “**Notice**”) to the other party concerning suchevent. A Notice shall state: (a) the circumstances giving rise to such event;and (b) a reasonable estimation of the Losses incurred by the IndemnifiedParty. Failure to provide the Notice shall not limit the rights of theIndemnified Party to indemnification hereunder, except to the extent that suchIndemnified Party’s failure has prejudiced the Indemnifying Party’s rights orincreased its liabilities and obligations hereunder.

###  

### (b)                                 Within15 days after delivery of a Notice with respect to a Third Party Claim, theIndemnifying Party shall have the option, at its sole cost and expense, toretain counsel for the Indemnified Party to defend any such demand, claim orlawsuit, provided that counsel who will conduct the defense of such demand,claim or lawsuit will be approved by the Indemnified Party whose approval maynot be unreasonably withheld. The Indemnified Party shall have the right, atits own expense, to participate in the defense of any suit, action orproceeding brought against it with respect to which indemnification may besought hereunder; provided, however, that if (a) the named parties to any suchproceeding (including any impleaded parties) include both the IndemnifyingParty and the Indemnified Party and representation of both parties by the samecounsel would be inappropriate due to actual or potential conflicts of interestbetween them; (b) the employment of counsel by such Indemnified Party has beenauthorized in writing by the Indemnifying Party; or (c) the Indemnifying Partyhas not in fact employed counsel to assume the defense of such action within areasonable time; then, the Indemnified Party shall have the right to retain itsown counsel at the sole reasonable cost and expense of the Indemnifying Party,which reasonable costs and expenses shall be paid by the Indemnifying Party ona current basis. If the Indemnified Party retains its own counsel pursuant tothe previous sentence, such counsel will be approved by the Indemnifying Partywhose approval may not be unreasonably withheld. No Indemnifying Party, in thedefense of any such demand, claim or lawsuit, will consent to entry of anyjudgment or enter into any settlement without the consent of the IndemnifiedParty, whose consent may not be unreasonably withheld. In the event that theIndemnifying Party shall fail to respond within fifteen days after receipt ofthe Notice, the Indemnified Party may retain counsel and conduct the defense ofsuch Third Party Claim, as it may in its sole discretion deem proper, at thesole reasonable cost and expense of the Indemnifying Party, which reasonablecosts and expenses shall be paid by the Indemnifying Party on a current basis.

###  

12.5                           Survival.This Article 12 shall survive the Closing; provided, however, that nothing inthis Article 12 shall be deemed to supersede, extend, or modify the limitationperiods set forth in 

 

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Section 12.1. Any matter as towhich a claim has been asserted by notice to the other party that is pending orunresolved at the end of the limitation period set forth in Section 12.1 shallcontinue to be covered by this Article 12 notwithstanding any applicablestatute of limitations (which the parties hereby waive with respect to any suchasserted claim) until such matter is finally terminated or otherwise resolvedby the parties or by a court of competent jurisdiction and any amounts payablehereunder are finally determined and paid.

 

12.6                           Threshold.No Indemnifying Party shall have any obligation to indemnify any IndemnifiedParty unless and until the aggregate amount of all Losses for which theIndemnified Party is otherwise entitled to indemnification pursuant to this Article12 exceeds Twenty Thousand Dollars ($20,000.00) (the “**Threshold**”). Thereafter, such IndemnifiedParty shall be entitled to indemnification for the amount of Losses in excessof the Threshold.

 

# **ARTICLE 13TERMINATION**

#  

13.1                           Terminationof Agreement. The parties may terminate this Agreement as provided below:

 

### (a)                                  Buyerand Sellers may terminate this Agreement by mutual written consent at any timeprior to the Closing.

###  

### (b)                                 Buyermay terminate this Agreement by giving written notice to Sellers, at any timeprior to the Closing: (a) if a Seller has breached in any material respect anyrepresentation, warranty, or covenant contained in this Agreement and thebreach has continued without cure for a period of 15 days after Buyer’s noticeto such Seller of the breach, and such breach has had a material adverse affecton the Business; or (b) by reason of the failure (without the reasonablepossibility of cure) of any condition precedent under Article 8 (unless thefailure results primarily from the breach by Buyer of any representation,warranty, or covenant contained in this Agreement).

###  

### (c)                                  Sellersmay terminate this Agreement by giving written notice to the Buyer at any timeprior to the Closing: (a) if Buyer has breached in any material respect anyrepresentation, warranty, or covenant contained in this Agreement and thebreach has continued without cure for a period of 15 days after Sellers’ noticeto Buyer of the breach; or (b) by reason of the failure (without the reasonablepossibility of cure) of any condition precedent under Article 9 (unless thefailure results primarily from the breach by a Seller or any of theirAffiliates of any representation, warranty, or covenant contained in thisAgreement).

###  

### (d)                                 Eitherparty may terminate this Agreement if the Closing has not occurred by December9, 2005.

###  

13.2                           Effectof Termination. If a party terminates this Agreement pursuant to Section 13.1,all rights and obligations of the parties hereunder shall terminate without anyliability of any party to any other party (except for any liability of anyparty then in breach and as otherwise specified herein); provided, however,that the provisions of Section 10.3 shall survive any such termination.

 

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# **ARTICLE 14ARBITRATION**

#  

IN THE EVENT ANY DISPUTE OR CONTROVERSY ARISES BETWEEN THE PARTIES OUTOF OR RELATING TO OR WITH RESPECT TO ANY OF THE PROVISIONS CONTAINED IN THISAGREEMENT (A “**DISPUTE**”), THE PARTYRAISING THE DISPUTE SHALL NOTIFY THE OTHER PARTY IN WRITING OF THE EXISTENCE OFTHE DISPUTE. THE PARTIES SHALL (EITHER IN PERSON OR VIA TELEPHONE) NEGOTIATE INGOOD FAITH FOR UP TO THIRTY (30) DAYS TO ATTEMPT TO RESOLVE THE MATTER. IF SUCHEFFORTS DO NOT RESOLVE THE DISPUTE WITHIN THIRTY (30) DAYS OF THE NOTICE, UPONDEMAND OF ANY PARTY, WHETHER MADE BEFORE OR AFTER THE INSTITUTION OF ANYJUDICIAL PROCEEDING, THE DISPUTE SHALL BE RESOLVED BY ARBITRATION AS PROVIDEDIN THIS ARTICLE 14. INSTITUTION OF A JUDICIAL PROCEEDING BY A PARTY DOES NOTWAIVE THE RIGHT OF THAT PARTY TO DEMAND ARBITRATION HEREUNDER. THE PARTIESSHALL MUTUALLY AGREE UPON AN ARBITRATOR FROM A LIST OF ARBITRATORS RECOGNIZEDBY THE AMERICAN ARBITRATION ASSOCIATION. THE PROCEEDINGS SHALL BE CONDUCTEDUNDER AND GOVERNED BY THE COMMERCIAL RULES OF THE AMERICAN ARBITRATIONASSOCIATION, AS IN EFFECT FROM TIME TO TIME. ALL ARBITRATION HEARINGS SHALL BECONDUCTED IN NEW YORK CITY, NEW YORK.****ALLAPPLICABLE STATUTES OF LIMITATION SHALL APPLY TO ANY DISPUTE. THE ARBITRATORSSHALL HAVE NO POWER TO AWARD PUNITIVE OR EXEMPLARY DAMAGES, TO IGNORE OR VARYTHE TERMS OF THIS AGREEMENT OR ANY OTHER RELATED AGREEMENTS, AND SHALL BE BOUNDTO APPLY CONTROLLING LAW. NO ATTORNEY’S FEES OR COSTS SHALL BE AWARDED AND THEPARTIES SHALL EQUALLY BEAR THE COST OF THE ARBITRATION. A JUDGMENT UPON THEAWARD MAY BE ENTERED IN ANY COURT HAVING COMPETENT JURISDICTION.NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS ARTICLE 14, THEPARTIES PRESERVE, WITHOUT DIMINUTION, CERTAIN REMEDIES THAT EITHER OF THEM MAY EMPLOYOR EXERCISE FREELY, EITHER ALONE, IN CONJUNCTION WITH, OR DURING A DISPUTE. THEPARTIES HERETO HAVE THE RIGHT TO PROCEED IN ANY COURT OF PROPER JURISDICTION TOOBTAIN PROVISIONAL OR ANCILLARY REMEDIES INCLUDING EQUITABLE OR INJUNCTIVERELIEF, GARNISHMENT, ATTACHMENT, APPOINTMENT OF A RECEIVER AND FILING ANINVOLUNTARY BANKRUPTCY PROCEEDING; AND WHEN APPLICABLE, A JUDGMENT BYCONFESSION OF JUDGMENT. PRESERVATION OF THESE REMEDIES DOES NOT LIMIT THE POWEROF AN ARBITRATOR TO GRANT SIMILAR REMEDIES THAT MAY BE REQUESTED BY A PARTY INA DISPUTE.

 

# **ARTICLE 15MISCELLANEOUS**

#  

15.1                           Amendments;Waivers. This Agreement and any schedule or exhibit may be amended only byagreement in writing of the parties. No waiver of any provision nor consent toany exception to the terms of this Agreement or any agreement contemplatedhereby shall be effective 

 

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unless in writing and signed bythe party or parties to be bound and then only to the specific purpose, extentand instance so provided.

 

15.2                           EntireAgreement. This Agreement (together with its schedules and exhibits)constitutes and contains the entire agreement and final understanding among theparties concerning the purchase and sale of the Business and all other subjectmatters addressed herein or pertaining thereto. This Agreement is intended bythe parties as a final expression of their agreement with respect to such termsas are included herein and, further, is intended by the parties as a completeand exclusive statement of the terms of their agreement. This Agreementsupersedes and replaces all prior negotiations and all prior or contemporaneousrepresentations, promises or agreements, proposed or otherwise, whether writtenor oral, concerning the purchase and sale of the Business and all other subjectmatters addressed herein or pertaining thereto. Any representation, promise oragreement not specifically included in this Agreement shall not be binding uponor enforceable against any party to this Agreement. This is a fully integratedagreement.

 

15.3                           ApplicableLaw. This Agreement shall be governed by and construed and interpreted inaccordance with the laws of the State of Delaware, provided that the conflictsof laws principles of the State of Delaware shall not apply to the extent thatthey would operate to apply the laws of another state.

 

15.4                           Headings.The descriptive headings of the articles and sections of this Agreement are forconvenience only and do not constitute a part of this Agreement.

 

15.5                           Counterparts.This Agreement and any amendment hereto or any other agreement (or document)delivered pursuant hereto may be executed in one or more counterparts and bydifferent parties in separate counterparts. All of such counterparts shallconstitute one and the same agreement (or other document). The parties to thisAgreement may deliver their executed counterparts by facsimile or otherelectronic means, provided that original signatures are delivered by U.S. Mailpromptly thereafter.

 

15.6                           Partiesin Interest. This Agreement will be binding upon and inure to the benefitof each party, and nothing in this Agreement, express or implied, is intendedto confer upon any other Person any rights or remedies of any nature whatsoeverunder or by reason of this Agreement. Nothing in this Agreement is intended torelieve or discharge the obligation of any third person to any party to thisAgreement.

 

15.7                           Notices.Any notice or other communication hereunder must be given in writing and either(a) delivered in person; (b) transmitted by facsimile, provided that any noticeso given is also mailed as provided in clause (c); or (c) mailed, postageprepaid, as follows:

 
| If to Buyer,  addressed to: |   | c/o  PharmaCare Management Services, Inc. |
|-----------------------------|--------|-------------------------------------------|
|                        |   | 695 George  Washington Highway            |
|                        |   | Lincoln, RI  02865                        |
|                        |   | Attn:  PharmaCare Specialty Pharmacy      |
|                        |   | Carmine  DeNardo                          |
|                        |   |                                      |
|                        |   | Fax: (401)  335-7433                      |

 

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| With a  simultaneous copy to: |   | Wyrick  Robbins Yates & Ponton LLP                                                                                                                                                                                                          |
|-------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                          |   | 4101 Lake  Boone Trail, Suite 300                                                                                                                                                                                                               |
|                          |   | Raleigh, NC  27607                                                                                                                                                                                                                              |
|                          |   | Attn: Lisa  D. Inman                                                                                                                                                                                                                            |
|                          |   | Fax: (919)  781-4865                                                                                                                                                                                                                            |
|                          |   |                                                                                                                                                                                                                                            |
| If to  Sellers, addressed to: |   | Curative  Health Services, Inc.                                                                                                                                                                                                                 |
|                          |   | 61 Spit  Brook Road                                                                                                                                                                                                                             |
|                          |   | Nashua, NH  03060                                                                                                                                                                                                                               |
|                          |   | Attn:  Corporate Counsel                                                                                                                                                                                                                        |
|                          |   | Fax:                                         |   |
|                          |   |                                                                                                                                                                                                                                            |
| With a  simultaneous copy to: |   | Bryan Cave  LLP                                                                                                                                                                                                                                 |
|                          |   | One  Metropolitan Square                                                                                                                                                                                                                        |
|                          |   | 211 N.  Broadway, Suite 3600                                                                                                                                                                                                                    |
|                          |   | St. Louis,  MO 63102                                                                                                                                                                                                                            |
|                          |   | Attn: Mark  H. Goran                                                                                                                                                                                                                            |
|                          |   | Fax: (314)  552-8686                                                                                                                                                                                                                            |

 

or to suchother address or to such other Person as any party shall have last designatedby such notice to the other parties. Each such notice or other communicationshall be effective (i) if given by mail, three days after such communication isdeposited in the mail with first class postage prepaid, addressed as aforesaid,(ii) if given by facsimile, when transmitted to the applicable number sospecified in (or pursuant to) this Section 15.7 provided that appropriateconfirmation of receipt is generated by the facsimile and a duplicate copy ismailed, postage prepaid, or (iii) if given by any other means, when actuallydelivered at such address.

 

15.8                           Expenses.Each party shall pay its own expenses incident to the negotiation, preparationand performance of this Agreement and the transactions contemplated hereby,including, but not limited to, the fees, expenses and disbursements of itsrespective investment bankers or brokers, accountants and counsel.

 

15.9                           Assignments.This Agreement and all of the provisions hereof shall be binding upon and inureto the benefit of the parties hereto and their respective successors andpermitted assigns. Neither this Agreement nor any of the rights, interests orobligations hereunder shall be assigned by any party without the prior writtenconsent of the others, except that either party may assign their rights to anAffiliate thereof or to any entity which acquires substantially all of theassets of or survives any merger with such party. Nothing contained herein,express or implied, is intended to confer on any Person other than the partieshereto or their respective successors and permitted assigns, any rights,remedies, obligations or liabilities under or by reason of this Agreement.

 

15.10                     Remedies;Waiver. All rights and remedies existing under this Agreement arecumulative to, and not exclusive of, any rights or remedies otherwise availableunder applicable law. No failure on the part of any party to exercise, or delayin exercising, any right hereunder shall be deemed a waiver thereof, nor shallany single or partial exercise preclude any further or other exercise of suchor any other right.

 

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15.11                     FurtherAssurances. Each party will use its commercially reasonable efforts toperform and fulfill all obligations on its part to be performed and fulfilledunder this Agreement, to the end that the transactions contemplated by thisAgreement shall be effected substantially in accordance with its terms as soonas reasonably practicable. The parties shall cooperate with each other in suchactions and in securing requisite Approvals. Each party shall execute anddeliver after the Closing such further certificates, agreements and otherdocuments and take such other actions as the other parties may reasonablyrequest to consummate or implement the transactions contemplated hereby or toevidence such events or matters.

 

15.12                     Representationby Counsel; Interpretation. Buyer and Sellers acknowledge that each hasbeen represented by counsel in connection with this Agreement and thetransactions contemplated by this Agreement. Accordingly, any rule of Law orany legal decision that would require interpretation of any claimed ambiguitiesin this Agreement against the party that drafted it has no application and isexpressly waived. The provisions of this Agreement shall be interpreted in areasonable manner to effect the intent of Buyer and Sellers.

 

15.13                     Severability.If any provision of this Agreement is determined to be invalid, illegal orunenforceable by any court or Governmental Entity, the remaining provisions of thisAgreement to the extent permitted by law shall remain in full force and effectprovided that the economic and legal substance of the transactions contemplatedare not affected in any manner materially adverse to any party. In the event ofany such determination, the parties agree to negotiate in good faith to modifythis Agreement to fulfill as closely as possible the original intents andpurposes hereof. To the extent permitted by law, the parties hereby to the sameextent waive any provision of law that renders any provision hereof prohibitedor unenforceable in any respect.

 

[*The next page is the signature page.*]

 

27

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**INWITNESS WHEREOF**, the parties hereto have caused thisAgreement to be executed as of the day and year first written above.

 
|   | SELLERS:                                    |
|--------|---------------------------------------------|
|   |                                        |
|   | CURATIVE  HEALTH SERVICES OF NEW YORK, INC. |
|   |                                        |
|   |                                        |
|   |                                        | /s/ Paul F.  McConnell |   |   |
|   | By:                                         | Paul F.  McConnell |   |   |
|   | Its:                                        | President |   |   |
|   |                                        |   |   |   |
|   | APEX  THERAPEUTIC CARE, INC.                |   |   |
|   |                                        |   |   |
|   |                                        |   |   |
|   |                                        | /s/ Paul F.  McConnell |   |   |
|   | By:                                         | Paul F.  McConnell |   |   |
|   | Its:                                        | C.E.O. |   |   |
|   |                                        |   |   |   |
|   | MEDCARE,  INC.                              |   |   |
|   |                                        |   |   |
|   |                                        |   |   |
|   |                                        | /s/ Paul F.  McConnell |   |   |
|   | By:                                         | Paul F.  McConnell |   |   |
|   | Its:                                        | President |   |   |
|   |                                        |   |   |
|   |                                        |   |   |
|   | PARENT:                                     |   |   |
|   |                                        |   |   |   |
|   | CURATIVE  HEALTH SERVICES, INC.             |   |   |
|   |                                        |   |   |
|   |                                        |   |   |
|   |                                        | /s/ Paul F.  McConnell |   |   |
|   | By:                                         | Paul F.  McConnell |   |   |
|   | Its:                                        | C.E.O. and  President |   |   |
|   |                                        |   |   |   |
|   |                                        |   |   |   |
|   | BUYERS:                                     |   |   |
|   |                                        |   |   |   |
|   | PROCARE  PHARMACY, INC.                     |   |   |
|   |                                        |   |   |
|   |                                        |   |   |
|   |                                        | Charles D.  Phillips |   |   |
|   | By:                                         | /s/ Charles  D. Phillips |   |   |
|   | Its:                                        | S.V.P. |   |   |
|   |                                        |   |   |
|   | PROCARE  PHARMACY DIRECT, INC.              |   |   |
|   |                                        |   |   |
|   |                                        |   |   |
|   |                                        | Charles D.  Phillips |   |   |
|   | By:                                         | /s/ Charles  D. Phillips |   |   |
|   | Its:                                        | S.V.P. |   |   |

 

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SCHEDULE 1.1

( Sellers’ Locations)

 

SCHEDULE 2.1(b)

( Licenses and Permits)

 

SCHEDULE 2.1 (c)

(Assumed Contracts and Leases)

 

SCHEDULE 2.1 (d)

(Phone and Fax Numbers)

 

SCHEDULE 2.2 (p)

(Additional Excluded Assets)

 

SCHEDULE 4.2

(Purchase Price Allocation)

 

SCHEDULE 5.5

(Encumbrances)

 

SCHEDULE 5.7

(Third Party Providers and Payors)

 

SCHEDULE 6.3

(Business Financials)

 

SCHEDULE 6.5

(Required consents)

 

SCHEDULE 6.8

(Labor Matters)

 

SCHEDULE 6.10

(Government Payment Programs)

 

SCHEDULE 6.11

(Absence of Certain Changes)

 

SCHEDULE 6.12

(Transactions with Affiliates)

 

SCHEDULE 6.13

(Litigation)

 

SCHEDULE 6.14

(Undisclosed Liabilities)

 

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SCHEDULE 10.1 (a)

(Seller’s Employees to Whom Buyer May OfferEmployment)

 

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